Coalition Attempt to Alter Migration Status of Non-Citizen Workers in Offshore Resource Sector Fails

In 2014, the Coalition government attempted to undo, by ministerial determination, reforms implemented by the previous Labor government, which brought non-citizen workers in the offshore resources sector within Australia's immigration regime. In Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45, the Federal Court found this to be an invalid exercise of the Minister's powers.

The case is indicative of the lengths that the Coalition has been willing to go to push through reforms in various areas despite a relatively hostile Senate, and the potential pitfalls associated with those methods. Similar scenarios are likely to play out in respect of any reforms that the Coalition seeks to implement following its review of workplace legislation if these reforms lack sufficient support in the Senate. 

Background

In 2012, the Federal Court of Australia held that two pipelaying vessels of the coast of Western Australia were not "Australian resources installations", and therefore persons working on them did not require visas under the Migration Act 1958 (Cth) (the "Migration Act"): Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCA 529; (2012) 203 FCR 200.

Following the judgment, and resulting discontent on the part of the Maritime Union of Australia (the "MUA") and the Australian Maritime Officers' Union (the "AMOU"), a Taskforce established by the Labor government recommended that a specific legislative concept be created to bring such workers within the Migration Act.

Accordingly, in 2013 legislation was passed, with effect from July 2014, which deemed persons who engage in an "offshore resources activity" to be within Australia's "migration zone"—so that non-citizens undertaking such activities required a specific visa to work (the "2013 Act"). The amendments also gave the Minister for Immigration the power to exempt an activity or activities from the definition of "offshore resource activity", so that they would not be captured by the new regime.

After coming into power, the Coalition government made some moves toward repealing and/or watering down this new regime. In March 2014, it introduced a bill to this end, which is, at the time of writing, still being considered by the Senate. In May 2014, regulations were made which allowed holders of certain temporary visas to work in the offshore resource sector, but these were disallowed by the Senate in July 2014.

After the regulations were disallowed, the Assistant Minister for Immigration purported to use the powers granted by the 2013 Act to exempt "all regulated operations and all regulated activities from the whole of the defined content of 'offshore resources activity'… with the consequence that non-citizen workers involved in those operations and activities did not require visas" (the "Determination").

Issue

Both the MUA and the AMOU applied to the Federal Court seeking a declaration that the Determination was invalid, as the Assistant Minister lacked the power to make it under the Migration Act. The crux of their argument was that the power to create exemptions to a general rule did not include the power to create a universal exemption so that the general rule applied in no case whatsoever.

Discussion

Despite the logical attraction of this argument, it failed at first instance. The primary judge found that Parliament had intended to create an "unfettered" or unlimited discretion in the Minister, which extended to "a complete (and perhaps temporary) exception of the kind effected by the Determination." This was heavily criticised by the unions on appeal, which argued (among other things) that the judgment failed to give effect to the clear purpose of the legislation. In response, the Assistant Minister argued that the purpose of the 2013 Act was to ensure that offshore activitiescould be regulated under the Migration Act, not to ensure that they would be so regulated.

The Full Court found that the "express purpose of the amendments, driven in part by border security considerations, was to regulate foreign workers participating in offshore resources activities by bringing those persons into the migration zone and thereby requiring them to hold a specified visa under the [Migration] Act…". The purpose of the regulation-making power in the 2013 Act was to allow the Minister to capture further activities than those already caught (including activities regulated by the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) or the Offshore Minerals Act 1994 (Cth)), or to exempt certain activities which he or she considered should not fall within the definition of "offshore resource activity" for these purposes. It was not intended to permit the Minister to implement a universal exemption that would negate the general rule altogether.

Ultimately, this means that the Federal Government will need to continue negotiations with the hostile Senate to progress its policy agenda in workplace relations reform.